Koslusky v. United States, 4
| Decision Date | 30 December 1953 |
| Docket Number | No. 4,Docket 22574.,4 |
| Citation | 208 F.2d 957 |
| Parties | KOSLUSKY v. UNITED STATES. |
| Court | U.S. Court of Appeals — Second Circuit |
O. Raymond Basile, New York City, for Joseph Koslusky, libellant-appellant, Stanley P. Danzig, New York City, of counsel.
J. Edward Lumbard, U. S. Atty., New York City, and Macklin, Speer, Hanan & McKernan, New York City, for United States, respondent-appellant, Leo F. Hanan and Martin J. McHugh, New York City, of counsel.
Before CHASE, Chief Judge, and AUGUSTUS N. HAND and MEDINA, Circuit Judges.
Pursuant to the Suits in Admiralty Act, 46 U.S.C.A. § 745, the libellant brought suit against the United States for damages under the Jones Act, 46 U.S.C.A. § 688, and for maintenance and cure. Between May 16 and September 14, 1944, the libellant served as an oiler on the M/V Black Rock, an ocean going tugboat owned and operated at that time by the respondent, the United States.
On June 24, 1944, the Black Rock was ordered by the British Admiralty to proceed to the aid of a British merchant vessel, the Fort Norfolk, which, due to enemy action, was in a sinking condition in the English Channel. Upon viewing the seriousness of the condition of the Fort Norfolk, the master of the Black Rock refused to order his men to board her to put lines across or to perform any salvage operations. However, several members of the United States Gun Crew on board volunteered. After they boarded the Fort Norfolk three members of the crew, including the libellant who had just finished his watch below in the engine-room, volunteered to and did join the Navy men. A line was made fast to the bow but as the slack was being taken up the Fort Norfolk started to break in half and sink. All the volunteers had proceeded to the middle of the vessel except libellant, who was then trapped on the bow by swinging booms and shifting gear. While the others escaped down the Jacob's ladder which had been strung amidships, the libellant was forced to jump into the water from the bow, a distance estimated between 50 and 70 feet. All the seamen including the libellant swam safely to the Black Rock.
The libellant continued his job on the Black Rock till September 14, 1944. At that time he was admitted to the General Army Hospital at Plymouth, England, complaining of pains in his abdomen and nausea. He was later transferred by hospital ship to the United States Marine Hospital at Brighton, Mass., from which he was discharged on November 29, 1944, with a recommendation of thirty days convalescence. He received treatment as an outpatient at the United States Public Health Service Hospital in New York and was discharged as fit for sea duty in May of 1945. On May 29, 1945, he was examined and passed for sea duty on the S. S. Grace Abbott as an oiler and he served on her until August 22, 1945, when his sickness returned. At that time he entered a hospital in the Canal Zone for a few weeks, was then flown to the United States and on October 5, 1945 entered the Marine Hospital at Ellis Island. Since that time he has been in various hospitals including the United States Marine Hospital on Staten Island from which he was discharged on September 17, 1951, as permanently unfit for sea duty. He now lives at Sailors Snug Harbor, Staten Island.
The court below found that the evidence failed to establish a direct causal...
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